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Whistleblowers: some ambiguities cleared up

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By now, most companies and organizations are familiar with the concept of "whistleblowing" and in particular with the Belgian Act of 28 November 2022 transposing the EU Whistleblowing Directive for the private sector. 

Indeed, since 17 December 2023, all legal entities in the private sector with 50 up to 249 employees must have their own internal whistleblowing channel. For companies of 250 employees or more or organizations in the financial sector or the sector aimed at preventing money laundering and terrorist financing, this was already the case since 15 February 2023.

But the legislation was not clear on how to calculate the 50-employee threshold and, in particular, when exactly this calculation should be made. The reference to the Act of 4 December 2007 on social elections raised doubts: should the threshold only be assessed every four years, as for the social elections procedure, or should it still be assessed on a more regular basis, and if so, how is it done in practice? 

The Belgian legislator has since clarified this in the draft Act of 9 November 2023 approved at the plenary session of 8 February 2024. 

As from 2025, a check must be made each year on 1 January as to whether the threshold of 50 employees was exceeded in the period of 4 previous quarters. For this purpose, the reference period is from 1 January to 31 December. If so, a whistleblowing channel must be established. If not, one is exempt for 1 year and it has to be checked again the following calendar year whether or not the threshold of 50 employees has been exceeded.

Meanwhile, for organizations in the Brussels (public) local sector, a Decree of the Brussels Capital Government of 7 December 2023 was published in the Belgian Official Gazette on 21 December 2023. Certain organizations falling under the Brussels Capital Region and/or exercising powers of the Agglomeration of Brussels and listed in the Decree (including administrative authorities, municipalities and intermunicipal partnerships) have also been obliged since 1 January 2024 to set up an internal reporting system to receive integrity violations.